Opposition Brief — Rowland v. Thompson

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4

No. 90-1499

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

JAMES ROWLAND, DIRECTOR,

CALIFORNIA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

¥.

MAURICE S. THOMPSON, et al.,

Respondents.

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD SPECTER

[Counsel of Record]

STEVEN FAMA

ARNOLD ERICKSON

Prison Law Office

General Delivery

San Quentin, CA 94964

Telephone No: (415) 457-9144

Attorneys for Respondents

QUESTIONS PRESENTED

1. Whether a consent decree in a complex civil rights case

should be dissolved when, over the last decade, no court

has ever found defendant-prison officials have fully

complied with the decree, but in prior orders and the one

being appealed the court has found numerous continuing

violations of the decree and two significant violations of

the Constitution?

II. Whether the Eleventh Amendment bars a court from enforcing

a consent decree that resolves federal constitutional

issues arising from the Eighth and Fourteenth Amendments?

III. Whether the lower courts properly ruled on prison

officials' motion to modify the consent decree when in

granting many of the requested modifications the courts

rejected the rigid Swift test, but instead applied a

flexible standard in order to accommodate the state's

legitimate interests in prison security and fiscal economy?

IV. Whether prison officials who, over the last eight years,

have had multiple opportunities to appeal orders

interpreting, modifying and refusing to dissolve a consent

decree and who have acted in conformity with those orders

may litigate the same issue on an appeal of an order

directing them to comply with the decree?

QUESTIONS PRESENTED . . . . ° . ° . :

TABLE OF

AUTHORITIES . ° . ° ° . . . .

OPINION BELOW . . : : . . . ° . :

JURISDICTION AND STATUTES PRESENTED . . . : . :

STATEMENT OF THE CASE . . ° . : : . : .

A.

B.

Cc.

D.

I.

Introduction ‘ ‘ ‘: : é ‘ a ‘ 5

Initial Proceedings . ° ‘ ‘

The Consent Decree . ‘ . .

A Summary of Prison Officials' Early Failures to

Comply with the Decree . °

The Monitor's First Report . ° : ° .

The Monitor's Second Report

The Monitor's Third Report

Petitioners' Motions before the Monitor to Vacate

or Modify the Decree , .

The Monitor's Fourth Report

REASONS FOR DENYING THE WRIT . . . . °

I.

THIS COURT NEED NOT DECIDE WHETHER THE CONSENT DECREE

SHOULD BE DISSOLVED BECAUSE NEITHER THE COURT OF APPEALS

OR THE DISTRICT COURT'S DECISION CONFLICTS WITH BOARD OF

EDUCATION v. DOWELL (1991) 498 U.S. ___, 112 L.Ed.2d

715

A. The Ninth Circuit's Decision . : :

B. Dowell is Factually Different and Legally

Distinct From the Issues Presented by This

Case. : ‘ ° : ‘ . : ‘ ‘

ii

18

18

19

If.

THE NINTH CIRCUIT'S REJECTION OF PETITIONERS' ELEVENTH

AMENDMENT CLAIM DOES NOT CONFLICT WITH THE DECISION IN

PENNHURST OR WITH OTHER COURT OF APPEALS DECISIONS, AND

BECAUSE PETITIONERS, BY AGREEING TO THE DECREE AND FAILING

q=e RAISE ANY SUCH CLAIM FOR MANY YEARS, LONG AGO WAIVED

ANY ELEVENTH AMENDMENT DEFENSE . . . . . 22

Til.

THE NINTH CIRCUIT'S AFFIRMANCE OF THE DISTRICT COURT'S

CAREFULLY CONSIDERED, FACT-SPECIFIC, FLEXIBLE RULINGS

REGARDING DECREE MODIFICATIONS DOES NOT CONFLICT WITH

THIS COURT'S DECISIONS REGARDING THE DEFERENCE DUE PRISON

OFFICIALS BECAUSE, EVEN ASSUMING THAT DEFERENCE MUST BE

GIVEN TO PRISON OFFICIALS' VIEWS IN DETERMINING

MODIFICATIONS TO CONSENT DECREES, THE COURTS BELOW DID

So - o +. . . . 7 7 . > ° . 28

IV.

THERE IS NO CONFLICT AMONG THE CIRCUITS ON THE

APPEALABILITY OF POST-JUDGMENT ORDERS AFFECTING AN

EQUITABLE DECREE . ° ° . ° ° . . . 33

A. The Ninth Circuit's Ruling Does Not Conflict

with the First Circuit : : : : : 33

B. The Appealability of the District Court's

Orders . . ° ° ° . . . . 35

C. Petitioners' Conduct Estops Them From

Prevailing : ‘ . : . ‘ : ; 37

CONCLUSION . ° . . . . . . ° . . 38

iii

Cases

Board of Education v. Dowell,

498 U.S. , 112 L.Ed.2d 715 (1991) :

Bounds v. Smith, 430 U.S. 817 (1977) . .

Carson v. American Brands, Inc.,

450 U.S. 79 (1981)

Chronicle Pub. Co. v. Hantzis, 902 F.2d 1028-1031

(1st Cir. 1990) eigen

Davis v. Waklee, 156 U.S. 680 (1985) . .

Delaware Valley Citizens' Council v. Commonwealth of

Pennsylvania, 678 F.2d 470, (3rd Cir.)

cert. denied, 459 U.S. 969 (1982) . .

Duran v. Carruthers, 885 F.2d 1485 (10th Cir.

EEOC v. Pan American World Airways, Inc., 796

(9th Cir. 1986) ; a °

Garrity v. Sununu, 752 F.2d 727

Ibarra v. Texas Employment Commission, 823 F.2d 873

(Sth Cir. 1987) . . .

International Association of Machinists v.

(

1989)

lst Cir. 1984)

Airlines, 849 F.2d 1481 (D.C Cir. 1988)

Jett v. Zink, 474 F.2d 149 (Sth Cir.), cert. denied,

414 U.S. 854 (1973) . .

Kerwit Medical Products Inc. v.

616 F.2d 833 (5th Cir. 1980)

N.

Kozlowski v. Coughlin, 871 F.2d 241 (2d Cir.

Eastern

1989)

Lelsz v. Kavanagh, 807 F.2d 1243 rehearing denied,

815 F.2d 1034 (5th Cir.), cert. dismissed,

108 S.Ct. 44 (1987) . .

Lelsz v. Kavanagh, 824 F.2d 372 (5th Cir.

Local Number 93, International Association of Firefighters

v. City of Cleveland, 478 U.S.

Marin v. Rowland, C-80-0012 MHP

501 (1986)

iv

1987)

& H. Instruments,

F.2d 314

Inc.

‘

18-21

34

26,

26,

26,

26,

24

28,

-36

27

38

36

27

27

27

-26,

29

New York State Association

for Retarded Children v.

596 F.2d 27 (2d Cir. 1979) . . : . . .

Pennhurst State School & Hospital v. Halderman,

465 U.S. 89 (1984) . .

Carey,

Ramirez v. Rivera-Dueno, 861 F.2d 328 (ist Cir. 1988) .

Roberts v. St. Regis Paper

(Sth Cir. 1981). ° °

Rockwell International v.

Co., 653 F.2d 166

Council, 851 F.2d 1208 (9th Cir. 1988) . . .

Scarano v. Centrai Railway

20? F.2d 510 (3rd Cir.

Suffolk County Jail cases,

Szabo v. U.S. Marine Corp.,

542 F.

Thompson v. Enomoto,

Thompson v. Enomoto, 815 F.

Thompson v Enomoto,

Toussaint v. McCarthy, 597

Toussaint v. McCarthy, 597

aff'd in relevant part,

Toussaint v. McCarthy, 801

Toussaint v. McCarthy, 918

Turner v. Safely, 482 U.S.

United States v.

Washington v. Penwell, 700

Wright v. Enomoto, 462 F.Supp.

Swift & Co.,

Co. of New Jersey,

1953) . . . . .

59 U.S.L.W. 3546-3547.

819 F.2d 714 (7th Cir.

Supp. 758 (N.D. Cal.

2a 1323 (9th Cir. 1987)

915 F.2d at 1389-1390 . . .

F. Supp. 1427 (N.D. Cal.

F. Supp. 1388 (N.D. Cal.

801 F.2d 1080 (9th Cir.

F.2d 1080 (9th Cir. 1986)

F.2d 752 (9th Cir. 1990)

ee: oy ie ‘

286 U.S. 106 (1932) .

F.2d 570 (9th Cir. 1983)

397 (N.D. Cal. 1976)

sum. aff'd sub nom. Enomoto v. Wright,

434 U.S. 1052 (1978) :

HanSord Atomic Metal Trades

1987)

1982)

1984)

1984)

1986)

22,

33,

34,

13,

29,

19,

Statutes and Rules

28 U.S.C. §1292(a) .

28 U.S.C. §1291 . :

Federal Rules of Civil Proc

Supreme Court Rule 14.5 :

edure, Rule 23

vi

Respondents, the plaintiff class, consisting of more than 300

men confined on Death Row at San Quentin State Prison and subject to

petitioner-defendants' custody and control, respectfully request that

this Court deny the Petition for Writ of Certiorari.

OPINION BELOW

The opinion below is correctly identified in the Petition at 1.

In addition, another opinion in this case filed by the Ninth Circuit

relevant to these proceedings is published at 815 F.2d 1323 (98th Cir.

1987).

JURISDICTION AND STATUTES PRESENTED

These matters are accurately set forth in the Petition at 1-2.

STATEMENT OF THE CASE

A. Introduction

This case is about a Consent Decree governing prison conditions

and practices for all California male prisoners who are condemned to

die. Petitioners ask the Court to grant certiorari to review a Ninth

Circuit decision affirming a District Court order denying in part

their motion to modify the Decree and denying in full their motion to

vacate the Decree. The petition is based on fundamental

misconceptions about the Ninth Circuit's decision and petitioners’

past conduct.

The Court of Appeals" opinion breaks no new ground when

reviewing the district court's legal conclusions or discretionary

decisions. It reaffirmed the use of a flexible standard for

BAxTi fyine comment decrees in institutional reform litigation and

Properly applied the doctrine of estoppel when reviewing petit ionere'

claims that the Decree cowered only one unit at San Quentin.

Contrary to the rosy picture petitioners paint ef their conduct

Gurine the last decade, the recemi reveale a less charitable

portrait. Petitioners hawe been charved with contempt seven times

anc have been found in contempt three times. They continue to

widlate the constitutional rioehts of condemned prisenere to thie day

Their leoal positions dawe shifted with the cenventence of the moment

1@2SinS the lower courts te apely the dectrisnes ef tudtetal and

esoitable estore)

zh the fece of petitioners SVel iPr es tatransigence the

HDastrict Sourt has bet te apex fc a2 Sees ie Maste Arm oen aa the

Bons THz re reas. i Sate ar OS. te Ce ~83..23 The tor has

2Rhoel THM THT OSS T RNS Set 4 | repeated] fa tes ¢

Bote Sy Ble Cleat le 22 et . tli cPers Rave cRallenvged the

S2StTrust Smet teuse oe 2 te az@ of Appeals Ce for apt t j

She Bante ant we. Noe ~~ tle Sor.t $ recommendat tons

how Te cs alts [e 2 ant ..2 2a chat | ted

=I4 Son - — ae >) 6h "> 1271 TC 20 a > : 2 : 2¢ Yue SOefore tr >

aay -.Te 2 = crt > ,~ > * }2MS2@ i 4 > 2s D zae 3 reared

~e? TWR OFM ses face 31d) 1 “Rem 3 [le nsenr sdqment

™ere wc uz* Jas “WHsoOns ia ir= shouid deny —

3g: .~ 35 a woes 3 Bis ”m Joes »AOtT oresent

wiles laT na Mor" 4aYPce is wD + red ’ Jjera 98 | OW -s

of other cirewits That is true in part because the decision is

extremely fart specific.

hecomd), if is clear from the record that the delay in resolving

thie case is attributable largely to petitioners’ continuing

vielatione of the berree and the Constitution. If the Court grants

the writ it will delay for another year or more petitioners’

obligation to develop a plan that finally will implement provisions

of a modified berree and eventually release ail parties from further

Litigation.

Third, despite petitioners’ nypertoie to the contrary, the

recor] demonstrates that *he istrict court and i*s Monitor fave Bent

over backwards *s accommevtate griseom officials’ legitimate concerns

arising from chanyget clroums*erces e940 save notified the Secree

according. s

Both lower cvcrte Reve “riled falta fully te Sin@lly rescive the

issues in thls compiler cease of ..@ FeMAL2 LAG Toe LA Br.tEe1 gla ang ia

fact to this Court ’s® price Cec. 4.578 @890C.4..) TIGKe TGNCNLAGg on

tenets of fecerée.. en et oUR.*: Te get .tiacn Clie SY grliacn

officiels presents "* Qvot reeser ts Tier ertant “ie grucess

The petition itee.% wowewer frenenms at ec ¢ een ve Cee Cor

Genying the wrt The petitisg o4 cute ev Satie. «ecru aie

Ris.eacinoe #tetemens Rie (6 § Bee tees Ser peer ene ny Pemeee | Sa |

to present with eccuracs The “aco! Were’ “ct Gl athe

underetanédine of the quer lon prerermet of BUS LcleeIt “euKoO SO

deny the pet itior Ke oO ~“eRPONCenN « see forth mm account

hietory, of thie cere anc sre “ . @eovrac cw wos ac in wM

©:on) fo ecmrt errr “Anes yer ’ “ve rw om

5. Initial Proceedings

The complaint in this action was filed in the Northern District

of California on July 6, 1979 on behalf of a class consisting of all

prisoners who were then or in the future would be condemned to death

by the State of California and housed at California's San Quentin

Prison. ER 1-30. The defendants were the Director of the

California Department of Corrections and the Warden of San Quentin in

their official capacities. The complaint alleged that the conditions

of confinement of condemned inmates at San Quentin violated the cruel

and unusual punishment clause of the Eighth Amendment, the due

process and equal protection clauses of the Fourteenth Amendment, the

free exercise clause of the First Amendment, and various provisions

of state law.

At the heart of the complaint was the automatic assignment of

all condemned prisoners to "Maximum A" status, the highest security

risk Classification in the California system, and their consequent

-- -,we+ ea _ | ~-a-« fC . . 4 :

2né prisoners a.llegea that California regulations governing the

p.acemen= cl prisoners in administrative segregation created a

e —- - = “* = = ess 77

i 2. Ic.1.cwing references will be used for documents

@ e¢ -_- = --+-o- a . < > | > *

$3ie4 in this Court and the lower courts:

Petition. . mae stm i : eee) eee

—— ' .

Pe<iticner's Appendix . - » Pet. App.

Excerpt of Record filed

in the Ninth Circuit . EP

as . aad: he oe

Piaintiffts’ Supp. Excerpt

of Pecord filed in the

RMintA Circuit. . PSEP

~-2@re's Pecord of Documents

filed in the District

Gr ga -- an)

liberty interest under which all prisoners, including the condemned,

were entitled to remain in the general population unless there was a

factual finding, following fair procedures, that a particular

prisoner had violated prison rules or otherwise constituted a threat

to institutional security. ER 5, 9. The prisoners alleged that they

were wrongfully deprived of the individualized factual classification

decisions afforded to all other types of California prisoners.

Consistent with their automatic Maximum A status, condemned

prisoners were segregated from the general population at San Quentin

and, at the time the complaint was filed, housed together in the

North Segregation Unit ("North Seg"), commonly known as Death Row, on

the top floor of the North Cell Block.

The prisoners complained of many aspects of the regimen imposed

upon them by their security classification and segregation

confinement. The regimen included solitary confinement in cells

measuring four and one-half by ten feet in an unsanitary, dark and

poorly-ventilated cell block, with no more than three hours of yard

exercise every four days and a five minute shower twice a week. ER

6-7.

As Maximum A inmates, respondents were also subject to other

Significant deprivations and restrictions which were not imposed upon

their general population counterparts. Condemned prisoners were

manacled at all times when leaving their cells. ER 7. Unlike the

general population, they were not allowed contact visits with their

families and friends. Instead, they could only visit usins

bakeeieone, separated from their visitors Dy a heavy slass barrier.

ER 6. In addition, they were forced to wear wa:ist restrz2ints 2urins

their visits. id. Unlike the general population, condemned

prisoners were not allowed to work or to participate in educational

or vocational programs or to attend religious services. ER 8.

Respondents alleged that there was no legitimate penological or

security basis for their segregation based on their death sentences

alone. ER 8. In other words, a prisoner's prospects for in-prison

behavior could not be determined merely from his commitment offense

or death sentence. ER 6. Plaintiffs also alleged that the security

precautions in effect to guard San Quentin's general population

prisoners were adequate to manage the risks posed by condemned

prisoners. ER 5.

Cc. The Consent Decree

After several months of discovery and intensive negotiations,

both sides agreed to compromise and settle the litigation by means of

a detailed Consent Decree (the "Decree"). The Decree was approved

and entered as a judgment of the District Court on October 23, 1980.

ER 49-68.

The Decree reflects a compromise of the prisoners' Fourteenth

Amendment claims. Prison officials were permitted to continue

segregating prisoners instead of housing them with the general

population. However, petitioners were restrained from subjecting

condemned prisoners as a class to the entire regimen of Maximum A

segregation.

Instead, the Decree requires prison officials to afford

condemned prisoners who do not present an unusual security risk and

who exhibit conforming behavior (defined as Grade A condemned) many

of the sage rights and privileges accorded to general populati

prisoners. The Decree also provides a procedure whereby a prisoner

may, on disciplinary or security grounds, be reclassified to Grade B

condemned and deprived of some of these privileges. A third category

is Walkalones, which refers to prisoners who would be Grade A, except

that other Grade A's will not tolerate them.

Unless placed in Grade B or Walkalones status, prisoners are

entitled under the Decree to six hours of indoor out-of-cell time per

day and twelve hours of yard exercise time per week, ER 57; to

contact visits with their families and friends, ER 65-66; toa

variety of yard equipment, ER 58-59; to eat lunch outside their cells

with other inmates, ER 60; to religious services, ER 62-63; to

participate in the art hobbycraft program, ER 62; to participate in

some educational programs, ER 63; to make purchases from the prison

canteen on the same basis as the general population, with certain

limited exceptions, ER 61-62; and to use tier telephones for personal

calls, ER 67.

Other provisions of the Decree are based on Eighth Amendment

rights, including those regarding sanitation, ER 63-64; food service,

ER 59-60; medical care, ER 64-65; and laundry exchange, ER 64.

Finally, the Decree attempts to guarantee due process and Sixth

Amendment rights of access to the courts by providing for very

limited law library facilities, ER 66-67; and attorney-client

visiting procedures, ER 67.

The Decree was to expire of its own accord within one year if

prison officials implemented all its provisions. ER 50. Teo this

day, petitioners have not fully complied with the Decree.

When the Decree was entered, the plaintiff class was all housed

in North Seg. Ongoing increases in the size of the class led

petitioners thereafter to confine some condemned prisoners ina

separate building called the Adjustment Center and others in Carson

Section of the South Cell Block. Eventually, the majority of

condemned prisoners were relocated to the East Cell Block.

D. A Summary of Prison Officials' Early Failures to Comply

with the Decree

Petitioners claim here, without citation to the record, that

prison officials remain subject to the court's jurisdiction although

they have complied with the Decree in North Seg since April 1982.

Pet. at 2, 17. This claim is erroneous. No court has ever found

petitioners in full compliance with the Decree for prisoners housed

in North Seg?’ or any other unit. Indeed, starting shortly after the

Decree was approved, noncompliance has been the norm rather than the

exception.

Before the Decree was to expire by its own terms, respondents

moved to extend jurisdiction because prison officials were denying to

all prisoners wherever housed the type and amount of attorney and

personal visits required by the Decree, and they were not properly

screening correctional officers assigned to units housing co:idemned

prisoners. CR 99, 100. Respondents also maintained that petitioners

were not complying with additional provisions of the Consent Decree

in the Adjustment Center. CR 100.

A . Fa ~ € > ' =_ . .

om At the time of the Moni r*s tw : ré

investigations no prisoners were housed in Nort? eg becca

unit was being rer

7

,.

.

-

,

ww

»

.

. i

On November 20, 1981, petitioners filed a counter-motion asking

the District Court to modify the Decree to delete provisions which

they claimed they could not comply with in the Adjustment Center.

PSER 1. They did not contend that the Decree only applied to

condemned prisoners when confined in North Seg. On January 20, 1982,

the District Court modified the Decree in parts relevant to the

Adjustment Center and extended jurisdiction to ensure substantial

compliance.

A few month later, on April 20, 1982, the prisoners again moved

to hold petitioners in contempt for failure to comply with the Decree

in the Adjustment Center, even as modified. CR 137. Petitioners

admitted noncompliance, but opposed the motion on the ground that

compliance was impossible because of structural differences in the

Adjustment Center. PSER 9. Again, petitioners did not contend that

the Decree only applied to prisoners confined to North Seg. Id.

Instead of holding petitioners in contempt, the District Court

continued the matter so that the parties could attempt to reach

agreement upon modifications to adapt the Decree to the then current

conditions in units other than North Seg. Thompson v. Enomoto, 542

F. Supp. 768 (N.D. Cal. 1982) .?/

On January 14, 1983, respondents again moved to hold prison

officials in contempt for failure to comply with provisions of the

3. Respondents' motion also sought to modify the Decree to

provide that condemned prisoners who were denied privileges for

disciplinary or security reasons would be entitled to hearings as

required for non-condemned igayto cc under Wright v. Enomoto, 462

F. Supp. 397 (N.D. Cal. 1976), sum. aff'd sub non. Enomoto v.

Wright. 434 U.S. 1052 11978). The court denied this aspect of

respondents' motion because the right to such relief was

bargained away when negotiating the Decree. Jd. at 770.

9

LL

Decree which were unrelated to structural differences between North

Seg and the Adjustment Center. CR 172, 173. Defendants opposed the

motion, but once again did not contend that the Decree applied only

when condemned prisoners were confined in North Seg. CR 183. The

District Court found petitioners in contempt for violating the

visiting provisions of the Decree. CR 206.

Frustrated by petitioners' noncompliance with the Decree and

unable to negotiate a modification of the Decree, the prisoners moved

the District Court in January 1985 to appoint a Special Master.

Among other reasons in support of the motion, respondents identified

over 30 continuing violations of the Decree, including inadequate

lighting, inadequate medical and psychiatric care, the absence of a

unit law library and insufficient showers. CR 227.

The District Court granted respondents' motion and appointed a

Special Master, known as the Monitor. Pet. App. A-120. The court

explained that petitioners' own intransigence necessitated the

appointment. Pet. App. A-120. The court cited petitioners' record

of noncompliance with the Decree, as well as their failure to present

the court with any acceptable modifications, or to even acknowledge

any violation of the Decree. Ibid. Petitioners appealed the

District Court's order to the Ninth Circuit, but the appeal was

dismissed. Thompson v. Enomoto, 815 F.2d 1323 (9th Cir. 1987).

E. onitor's First Report

The Monitor conducted an extensive investigation of petitioners’

compliance with the Decree. His findings were detailed in his First

Report, filed October 31, 1986. Contrary to petitioners' assertions,

the Monitor found that prison officials were not complying with the

10

Decree in several respects. CR 316. However, he declined to find

then in contempt. He aiso construed the Decree to apply only to

those condemned prisoners confined in North Seq. Id.

Respondents appealed the Monitor's legal conclusion to the

District Court. The court reversed the Monitor and held that the

Decree applied to all condemned prisoners wherever housed. Pet. App.

A-1i06. The court based its conclusion not only on the language of

tne Decree, but also on petitioners' post-Decree conduct and on its

previous orders. ER 86-89. Defendants did not appeal from this

order. The Ninth Circuit held that this was one of the appropriate

times to appeal the scope of the Decree. Pet. App. A-9.

F. The Monitor's Second Report

Early in 1987 petitioners moved to modify the Decree to allow

them greater latitude to handcuff condemned prisoners. After a

hearing before the henieor the parties reached agreement on a

modification to the Decree. Under the modification, which the

District Court approved, petitioners were able to handcuff prisoners

in exchange for allowing prisoners to possess certain typewriters and

use weights for outdoor exercise. ER 155, 157. Petitioners agreed

to and sought the court's approval of the modification even though

weights and typewriters are not required by the Eighth Amendment or

any other provision of federal law. ER 157.

G. The Monitor's Third Report

When negotiations again failed to resolve continuing issues

relating to petitioners' noncompliance, the Monitor compieted his

investigation. In November 1988, the Monitor issued his Third

Report. ER 158-202. This Report recommended that the District Court

11

order petitioners to show cause why they should not be held in

contempt for numerous instances of noncompliance with the Decree.

The Report clearly demonstrated that there was no factual dispute

about petitioners‘ failure to comply with the Decree. ER 162.

When the Third Report was issued, ali condemned inmates had been

transferred to the East Block at San Quentin, a separate structure

from any of those in which condemned prisoners had been confined

previously. ER 162. In his Third Report, the Monitor noted that

plaintiffs were "a class within the meaning of Rule 23 of the Federal

Rules of Civil Procedure, consisting of all prisoners housed under

sentence of death at San Quentin State Prison, wherever housed within

that Prison." ER 166.

Petitioners did not file any objections to the Monitor's Third

Report with the District Court, and on December 15, 1988, the Third

Report was adopted by the District Court thereby ordering prison

officials to show cause why they should not be held in contempt. ER

203-04. Again, petitioners did not appeal.

Before the hearing on the order to show cause, petitioners filed

@ moticn to vacate the Decree on the ground that the object of the

Decree had been fulfilled by "operation of law" because current

conditions of confinement, while not in conformity with the Decree,

were nevertheless constitutional. They renew that argument before

this Court, claiming in their petition that the conditions of

confinement “over the years more than satisfied Eighth Amendment

standards ... .“ Pet. at 3. See also Pet. at 13, 17, 18. This

factual assertion is at best misleading.

Not only has the District Court never made any findings on this

issue, but four years after the Decree was entered the court in

another case found that the conditions in units housing condemned

prisoners violated the Eighth Amendment. Toussaint v. McCarthy, 597

F. Supp. 1388 (N.D. Cal. 1984) aff'd in relevant part 801 F.2d 1080

(9th Cir. 1986) chronicled the extent to which petitioners allowed

conditions to deteriorate in EastBlock and other units at San

Quentin. The horrible conditions found by the District Court, even

after a preliminary injunction had been in effect, displayed an utter

disregard by petitioners for the safety and well-being of prisoners

in their custody. The one and only reason petitioners improved

conditions was the permanent injunction, and it took seven years,

under the court's constant supervision, for them to comply with this

‘/ For petitioners to imply here that they maintain conditions

order.*

consistent with the Eighth Amendment as a product of their own free-

will and good faith is a gross distortion of the facts.

Petitioners compound their misstatement by asserting that the

Monitor held that the Decree substantially exceeds applicable Eighth

Amendment standards. Pet. at 9. The Monitor did nothing of the

kind. The only authority cited by petitioners refers to the

Monitor's discussion in the Fourth Report about prisoners' due

process claims under the Fourteenth Amendment. Pet. App. A~-58-62.

4. Only within the last two months did the court find that

all aspects of the Toussaint injunction were being followed at

San Quentin.

as

Petitioners also moved in the alternative to modify the Decree

to conform with the manner in which they were presently confining

death row inmates, thereby effectively mooting the question of

contempt. CR 447. Petitioners claimed that they were complying with

the Decree as much as possible under the circumstances. They renew

this erroneous claim in their petition, stating that they used the

Decree as a blueprint for designing a program for condemned priscners

in East Block. Pet. at 3. By their own admission, however, prison

officials eliminated from the condemned program whatever provisions

they considered “unnecessary [or] too burdensome." Pet. at 3. The

predictable result is a program that bears little resemblance to the

letter or intent of the original Decree.

One of the central features of the Decree is the opportunity for

Or out-of-cell time where prisoners can socialize and participate

im programs in a fashion similar to general population prisoners.

This feature is completely absent from the regimen imposed in East

-_-—-~~ oe

S we oe & & wii -2 ce) im TA z £G - Ss 4 (@)

etitioners cla na t is dangerous and costly t

provide imdoor exercise in East Block, but they made no attempt to

provide an adequate substitute. After considering extensive evidence

on this issue the Monitcr and the District Court rejected

rguments. The District Court, in the order being

appealed, found that petitioners could provide outdoor exercise time

that is equal to or at least approximates the tier time required by

5 Petitioners’ also nave a@iscarded other significant

features cf the Decree, including group religious services,

canteen and cell furnishings Pet. App. A-83, 88, 93.

i4

the Decree without significant cost or disruption of the prison

routine. Pet. App. A-67.

1. The Monitor's Fourth Report

After consideration of petitioners' motions, seven days of

hearing and extensive post-hearing briefing, the Monitor issued his

Fourth Report on August 1, 1989. ER 205-92. That Report and the

court's order adopting it are the immediate subjects of the appeal

and petition for writ of certiorari.

In his Fourth Report the Monitor recommended numerous

modifications of the Decree sought by petitioners, found many

violations of the Decree and two constitutional violations. The

violations of the Decree included (1) the absence of a roof in the

exercise yard to shield prisoners from inclement weather, (2)

insufficient opportunities to shower, and (3) insufficient indoor

exercise. Pet. App. A-63, A-69, A-79. In addition, the Monitor

found that petitioners were violating prisoners' constitutional

rights under the Eighth Amendment to be free from severe unrelenting

noise, and Sixth and Fourteenth Amendments to access to the courts

through physical presence in an adequate law library. Pet. App. A-

98-101, A-103.

Petitioners claim here that the Monitor “ignored, summeri

ty

te

dismissed, or discounted" petitioners' evidence. Pet. at &. Nothing

could be further from the truth. In fact, the Monitor deferred in

large measure to petitioners' opinions on security related issves,

even when there was little, if any, factual basis to support those

opinions. Pet. App. A-72, 8&4, 86, 89. On the centrel issue of

indoor tier time the Monitor expressly appraised petitioners '

i§

evidence in considerable detail before deciding the issue, largely in

petitioners' favor. Pet. App. A-63-68. Also, the Monitor

recommended modifying the Decree to take away from Grade B prisoners

substantial property guaranteed by the original Decree. Pet. App. A-

19. The Ninth Circuit correctly found that the Monitor based his

recommendations on “specific facts and evidence." Pet. App. A-20 fn.

Ve

The Monitor was similarly respectful of petitioners' legitimate

interests when proposing a remedy. The dane did not blindly

recommend to the court that petitioners be ordered to comply with

every ietter of the Decree. Instead, he made his recommendations

based on a recognition that in ins$itutional litigation the state and

public interests at stake make it inappropriate to “interpret and

enforce a consent decree as if it were strictly a 'bargain' between

private parties." Pet. App. A-49. The Monitor also understood that

concerns for preserving federalism require that any remedi2s imposed

by a federal court must be narrowly tailored to cure the violation.

Pet. App. A-50.

Using these principles as a guide, the Monitor deferred in large

measure to prison officials' security and financial concerns. For

example, he accepted prison officials’ security arguments that the

Decree should be modified to take away from Grade B condemned

prisoners certain yard equipment, cell equipment, personal property,

canteen items and access to telephones. Pet. App. A-19. He refused

to apply the literal terms of the Decree to require indoor exercise

in East Block. Instead he adopted a common sense solution and

suggested that the District Court "avoid unnecessary entanglement in

16

an attempt to specify what structural modification might, or might

not, allow a safe tier time program in East Block." Pet. App. A-66.

The Monitor recommended, and the court ordered, that petitioners

submit a plan to expand pre-existing outdoor exercise yard time so

that it is substantially equivalent to the indoor tier *ime

contemplated by the Decree. Pet. App. A-68.

Also, in his Fourth Report the Monitor denied petitioners'

motions to vacate the Deoree or modify it to conform to existing

practices. Pet. App. A#62. He further recommended that the District

Court order petitioners to remedy existing constitutional violations,

again through connon feense and cost-effective measures.*

The District Cyast adopted the Monitor's Fourth Report in full

and denied petitiontre’ motion to vacate or otherwise modify the

Decree. Pet. App. A-39. Petitioners' appeal to the Ninth Circuit

and their writ to this Court followed.

6. The Monitor noted that to comply with an injunction in

another case pending against San Quentin petitioners developed a

satellite law library in order to satisfy their constitutional

obligations to another class of segregated inmates. He

recommended that the Decree be modified so that condemned

prisoners also have access to this library. Pet. App. A-100-

101.

Similarly, the Monitor recommended applying to condemned

prisoners the noise reduction measures already adopted in the

other case and implemented in East Block. Pet. App. A-103-104.

17

>

&,

REASONS FOR DENYING THE WRIT

I.

THIS COURT WEED NOT DECIDE WHETHER THE CONSENT

DECREE SHOULD BE DISSOLVED BECAUSE NEITHER THE

COURT OF APPEALS OR DISTRICT COURT'S DECISION

CONFLICTS WITH BOARD OF EDUCATION v. DOWELL

(1991) 498 U.8. , 112 L.Ed.2da 715

A. The Ninth Circuit's Decision

In Board of Education v. Dowel], 498 U.S. _, 112 L.Ed.2d 715

(1991), the issue before the Court was whether a court imposed

injunction concerning school desegregation should be dissolved when

officials have complied both with the injunction and the

Constitution. The Court held dissolution is proper when the

defendants Rave complied with the injunction for a reasonable period

of time and were unlikely to return to their unconstitutional

practices. qe at 728

Tre Ninth Circuit did not have any reason to decide this issue.

In Dowell the district court issued a coercive injunction of

indefinite duration. The issues presented here are framed by a

voluntary consent decree that has an explicit sunset provision.

Mcrecver, assuming the principles announced in Dowell apply to this

sf comsent decree, they are irrelevant because petitioners’

moncompliance with the Decree was not then and is not now disputed.

see Pet. at 3 Therefore, the focus of the appeal was properly on

petitioners’ efforts to limit or vacate the Decree for other

reasons.-

7. The Court of Appeals decided only the following

guuestions: whether "(1) the district court lacked jurisdiction

ts moc.ify tne decree after 1982 (2) the district court exceeded

Bb. Dowell is Factually Different and Legally Distinct

From the Issues Presented by This Case

Petitioners try in vain to fit this case into the mold of Board

of Ed. Okiahoma City v. Dowell, supra, 112 L.Ed.2d 715. Their

attempt fails because the central concern in Dowel] -- whether local

officials who are complying with the Constitution and the injunction

should be subject to “judicial tutelage for the indefinite future"

-- is not present.

Dowell is a thirty year old school desegregation case in which

the district court imposed on local school officials an injunction to

end de jure discriminatory practices. The injunction will continue

of its own force unless dissolved upon proper motion. After school

officials fully complied with the injunction for five years, the

district court round that defendants would in the future continue

constitutional practices without the burden of an injunction. I]d. at

724. The court terminated its jurisdiction of the case. Ibid.

On this record this Court remanded the case back to the district

court to decide, based on a totality of circumstances, whether school

$

officials have eliminated all vestiges of past discrimination and

|

whether school officials complied with the injunction in good faith.

id. at 729. The present case could not be more different.

This history of this case is reminiscent of the Court's recent

description of the protracted litigation in United States v.

Co., 286 U.S. 106 (1932): "The defendant meat-packers and their

its jurisdiction in enforcing the consent decree outside of North

Seg; and (3) the district court abused its discretion in denying

prison officials' motion to vacate the decree on Eleventh

Amendment grounds." Pet. App. A-13.

1°

allies had over a period of a decade attempted, often with success in

the lower courts, to frustrate operation of the decree." Dowell, at

727. The only significant difference between Swift and this case is

that here the lower courts have refused to cooperate with prison

officials' attempts to evade their self-imposed responsibilities

under the Decree.

The injunction in Dowell continues indefinitely. That is not

the case here. The Consent Decree would have expired by its own

terms ten years ago if prison officials had fulfilled their part of

the bargain.§ Pet. App. A-5.

Petitioners state that the past nine years "should have been

more than enough time to have ‘enabled the District Court to observe

the good faith of petitioners in complying with the Decree . °o

Pet. «zt 19. That is certainly true; there has been time enough for

accurate observation. The District Court's definitive rulings which

petitioners studiously avoid, are telling -- the findings are a

litany of petitioners' continued and unabated failures to comply with

the Decree- nd the Constitution.-—

6. In their petition, prison officials concede they are not

complying with some provisions of the Decree because they have

unilaterally decided they are "unnecessary" or "too burdensome."

rat. At 3.

9. For example, in 1981 petitioners did not comply with

provisions concerning attorney visits and screening of

correctional officers. CR. 100, 113 {court order extending

Jurisdiction for noncogzpliance In 1985 petitioners failed to

properly maintain the unit law library, provide adequate

psychiatric care, provide the prescribed number of weekly showers

and permit group religious services. CR. 228, 241 [order finding

noncompliance with Decree The monitor's most recent findings

of moncozpliance are set forth in Statement of Case, gupra §H.

See aiso Pet. App. at A-6)-¢ p=)

In Dowel] school officials took the opposite approach; they

complied with the injunction. Accordingly, on remand there appears

to be a substantia) likelihood that the District Court may grant

their motion to dissolve the permanent injunction. For California

prison officials the same course remains available. Rather than

fighting every step of the way, the surest road to achieve their

desired goal is to promptly and consistently comply with the Decree

and the Constitution. The key to ending this case is now, as it

always has been, in petitioners' hands.?/

10. The best example is petitioners' refusal to provide

condemned prisoners with access to ,jthe courts. In 1986 the Ninth

Circuit held that the paging system employed by prison officials

at San Quentin to provide prisoners in segregation with law books

was unconstitutional under Bounds v. Smith, 430 U.S. 817, 828

(1977). Toussaint v. McCarthy, 801 F.2d 1080, 1109 (9th Cir.

1986). To comply with the Ninth Circuit's mandate, prison

officials eventually set up a satellite law library for

segregated prisoners. See Toussaint v. McCarthy, 918 F.2d 752

(9th Cir. 1990). Petitioners did not let prisoners on Death Row

use this library or provide any other acceptable alternative.

The district court in the present case directed petitioners

to allow condemned prisoners physical access to a law library.

Pet. App. A-40, A-101. Petitioners appealed to the Ninth Circuit

without seriously contesting this part of the order, except to

the extent it is covered by their argument that the entire decree

should be vacated. To this cay, petitioners refuse to provide

physical access to the library as required by Bounds, Toussaint

and the district court's order in this case.

11. The California Department of Corrections has a history

of ignoring court orders. Prison officials have been held in

contempt at least one other prison case. See Toussaint v.

McCarthy, 597 F. Supp. 1427 (N.D. Cal. 1984). A motion for

contempt is now pending in Toussaint because of priscn officials’

alleged failure to comply with the preliminary injunction at the

Correctional Training Facility at Soledad.

Special Masters have been appointed in two

involving San Quentin because of prison official

of abiding by court decrees. See [To

F. Supp. 1388, 1407, 1418 ‘court orders have

compliance "spotty at best"°: Marin wv ee)

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II.

THE NINTH CIRCUIT'S REJECTION OF PETITIONERS' ELEVENTH

AMENDMENT CLAIN DOES NOT CONFLICT WITH THE DECISION IN

PENNHURST OR WITH OTHER COURT OF APPEALS DECISIONS, AND

BECAUSE PETITIONERS, BY AGREEING TO THE DECREE AND FAILING

TO RAISE ANY SUCH CLAIN FOR MANY YEARS, LONG AGO WAIVED

ANY ELEVENTH AMENDMENT DEFENSE.

The Ninth Circuit had no difficulty rejecting petitioners' claim

that the Eleventh Amendment prohibits enforcement of the Decree.

Pet. App. at 18-19. Petitioners assert that this ruling conflicts in

principle with this Court's decision in Pennhurst State School &

Hospita]) v. Halderman, 465 U.S. 89 (1984)

, and that the circuits are

in conflict regarding whether the Eleventh Amendment bars enforcement

of a decree of the Kind at issue in the present case. Pet. at 22-

25 Petitioners are wrong in both assertions; their attempt to

persuade the Court otherwise is but another bid to delay their

compliance through obfuscation of the issues

Petitioners first assert that Pennhurst prohibits federal courts

from enforcing the Decree in the instant case because, they imply, it

1S a remedy that does not spring from, address, or relate to a

federal right Id. at 22-23. THis premise misreads Pennhurst,

~gmeores subsequent decisions of this Court and the Court of Appeals

w-swaess ew ee

iw

ct

)

'

th

wD

regarding the authority of deral courts to enter and enforce

-aanm-= a> ~_- —— - ~ i= — ~ _ ~ — Rs 1 1

~onsen= cscecrees, misreads the record of this case, and overlooks the

fact Cnat petitioners iconmg ago consented to the jurisdiction of the

federal courts

‘ e - --~ ~ ~ - ~ ~ a a oo nie >

¥.0 -al special master appointed part because prison

-<¢+e€e ~ \_- = -~ - ~- - - ~ } ol

ctficiais f21.ec “cs comply with decree regarding medical and

psychiatric care

Pennhburst held that the Eleventh Amendment bars lawsuits against

state officials for injunctive relief when the only basis for that

relief is to ensure compliance with state law. Pennhurst, supra, 465

U.S. at 106. The Court reasoned that no federal interest in the

supremacy of federal law is present in such a case, and that, rather,

a federal court instructing state officials on how to conform their

conduct to state law represented a great intrusion on state

sovereignty. Jd. at 105-106.

The concerns regarding state sovereignty and the lack of any

federal interest that were critical to Pennhurst are not applicable

to the present case, where, as the Ninth Circuit stated, the lawsuit

was brought against state officials to vindicate federa]

constitutional rights. See Pet. App. at 18; see also discussion

infra. Petitioners badly misread Pennhurst.

In addition, Pennhurst recognized that Eleventh Arend:

a

"y

ct

immunity may be waived, and that a State may consent to suit against

it in federal court. Pennhurst, supra, 465 U.S. at 939. In the

present case, petitioners waived any Eleventh Amendment defense ry

agreeing to the Decree, thus explicitly consenting to the federal

court's jurisdiction. See Delaware Valley Citizens’ Council wv.

Uv

Commonwealth of Pennsylvania, 678 F.2c 470, 475 (3rd Cir. cext

denied, 459 U.S. 969 (1982); New York State Ass'n for Reterdec

Children v. Carey, 596 F.2d 27, 39 (2a Cir. 1979). If their consent

to judgment by way of the Decree were mot enough petitioners’ waiver

of any Eleventh Amendment cefense méy be inferres from their partias

compliance with the Decree anc prolonged failure to raise any suct

objection until many years after the Decree was entered and Pennhurst

decided. See Garrity v. Sununu, 752 F.2d 727, 738 (lst Cir. 1984).

Petitioners‘ assertion that the Decree cannot be enforced to the

extent that it provides relief not specifically required by federal

law also conflicts in principle with the Court's decision in Local

Number 93, International Association of Firefighters v. City of

Cleveland, 478 U.S. 501 (1986). In Local Number 93, the Court held

that if certain criteria were met a court in a Title VII case could

enter a consent decree that provided relief in excess of that which

pursuant to federal statute could have been ordered after trial as

long as the remedy did not conflict with the enabling statute.

Although Local Number 93 did not address an Eleventh Amendment clain,

the Court's rejection of any doctrine prohibiting relief in a consent

decree that may not have been available after trial, so long as the

case was based on a federal question, is equally applicable to the

present case, in which the Decree arises from a suit based on claims

of federal constitutional violations.

Local Number 93 set forth the criteria that must be met before a

district court may enter a consent decree. The Court held that

before entering a decree the court must be certain that the decree:

(1) “spring[{s] from and serve[s) to resolve a dispute within the

court's subject matter jurisdiction," (2) "come[s]} within the general

scope of the pleadings," and (3) “further[s] the objectives of the

law upon which the complaint was based." Id. at 525. If these

three conditions are met, the decree may contain relief broader than

that which the court could have awarded after trial. Ibid.

24

The Decree in the present case meets the Local Number 93

criteria. The complaint in the present action alleged that

conditions of confinement violated the prisoners' federal

constitutional rights, and that federal rights to due process and

equal protection were violated by petitioners' practice of

automatically placing condemned prisoners in administrative

segregation without individual determinations that general population

housing would seriously endanger safety or security. See Statement

of Case, supra. The Decree resolved these claims by, essentially,

allowing petitioners to maintain certain conditions of confinement,

and, with regard to the automatic segregation claim, requiring that

certain general population-like conditions of confinement be provided

to all prisoners, except those which petitioners determined that

safety or security required segregation-like conditions. Ibid.

The Decree, in short, resolved a dispute within the District

Court's subject matter jurisdiction, fit within the general scope of

the pleadings, and by remedying certain conditions of confinement for

all condemned prisoners and ameliorating the arbitrary classification

of condemned prisoners through provision of general population-like

conditions of confinement for some of the prisoners, furthered the

objectives of the legal principles underlying the complaint. Under

the rule announced in Local Number 93, the District Court in the

present case clearly had authority to enter the Decree. Therefore,

petitioners' argument that the remedy enforcing the liberty interest

established by state law goes beyond constitutional minima (Pet. at

10) is beside the point.

25

If the court could validly enter the Decree, it could, contrary

to petitioner's assertions, surely enforce it. Two Circuits have

relied on Local Number 93, 478 U.S. at 525, when upholding district

court orders enforcing a decree that requires more than what the

court could order after trial. Kozlowski v. Coughlin, 871 F.2d 241,

244 (2d Cir. 1989); see also Duran v. Carruthers, 885 F.2d 1485, 1491

(10th Cir. 1989).

Petitioners also are wrong when they claim that the Ninth

Circuit's rejection of their Eleventh Amendment arguments conflicts

with other appellate decisions. First, petitioners correctly point

out (see Pet. at 23-24) that the Second and Tenth Circuits (in

Kozlowski and Duran) have ruled that so long as the Local Number 93

criteria are met, there is no Eleventh Amendment bar to enforcement

of a decree, even where some provisions exceed the remedies required

by violations of federal rights.

However, the cases cited by petitioners as being in conflict

with these Circuits and the Ninth Circuit ruling herein do not in

fact reach contrary conclusions. Petitioners' assertion that Lelsz

v. Kavanagh, 807 F.2d 1243, rehearing denied, 815 F.2d 1034 (5th

Cir.), cert. dismissed, 108 S.Ct. 44 (1987) is inconsistent is based

on an overbroad reading of the court's holding. In Lelsz, the Fifth

Circuit prohibited enforcement of a portion of a decree that rested

entirely on state law grounds. Ibid. The Fifth Circuit, in two

cases not cited by petitioners herein, has subsequently limited Lelsz

to decrees or portions of decrees based solely on state law. Lelsz

v. Kavanagh, 824 F.2d 372, - 3 (5th Cir. 1987) (hereinafter Lelsz

26

Ii); ibarra v. Texas Employment Commission, 823 F.2d 873, 876-77 (5th

Cir. 1987).

In Lelsz II, the Fifth Circuit held that regardless of their

first ruling in Lelsz, provisions of the consent decree based on

federal rights could be enforced. Lelsz II, 824 F.2d at 373. In

Ibarra, the Fifth Circuit rejected an Eleventh Amendment challenge to

a consent decree because the suit from which the decree followed was

based on federal law and again specifically limited the first Lelsz

decision to portions of decrees based solely on state law. Ibarra,

823 F.2d at 877. Similarly, there is no conflict between other

appellate decisions and Washington v. Penwell, 700 F.2d 570 (9th Cir.

1983), asserted by petitioners to be in conflict because it

"recognized" that a consent decree may not be enforced "unless

enforcement is needed to remedy a federal law violation." Pet. at

23. The court's observation in Washington does not conflict with the

decision in the present case, because herein, as in Kozlowski and

Duran, enforcement of the Decree is necessary to remedy a federal law

violation.”

In sum, the Fifth, Second and Tenth Circuits as well the Ninth

Circuit in the present case have all announced and applied a

consistent rule: so long as a consent decree springs from a

complaint based on federal law, the Eleventh Amendment does not bar

entry or enforcement of that decree. Because there is no conflict

12. The decree provision at issue in Washington also was

found to be void because it was agreed to by state officials who

had no authority to enter into it. Jd. at 573. Of course, there

is no such deficiency with regard to the Decree in the present

case.

27

between the circuits, and because the rule applied here is consistent

with the decision im Pennhurst and follows that applied in Local

Number $3, the petition for certiorari should be denied.

IItI.

THE NINTH CIRCUIT'S AFFIRMANCE OF THE DISTRICT COURT'S

CAREFULLY CONSIDERED, FACT-SPECIFIC, FLEXIBLE RULINGS

REGARDING DECREE MODIFICATIONS DOES NOT CONFLICT WITH THIS

COURT'S DECISIONS REGARDING THE DEFERENCE DUE PRISON

OFFICIALS BECAUSE, EVEN ASSUMING THAT DEFERENCE MUST BE

GIVEN TO PRISON OFFICIALS' VIEWS IN DETERMINING

MODIFICATIONS TO CONSENT DECREES, THE COURTS BELOW DID SO.

Petitioners appear to suggest that the Ninth Circuit erred

because in affirming an order that failed to adopt each and every

modification they proposed, the decision conflicts with this Court's

decisions respecting the deference due prison officials. This

assertion is first wrong because the principles which led this Court

to caution federal courts to defer to state prison officials when

evaluating claims of constitutional violations are markedly absent in

a case where state prison officials voluntarily enter into a consent

decree. The assertion is also wrong because, even assuming such

deference must be given when considering modifications to a consent

decree, the District Court did so in present case by carefully

considering the views of prison officials and in several significant

respects modifying the Decree to their advantage.

The deference federal courts must in general give to state

prison officials when considering a claim of a constitutional

violation or in issuing an injunction is premised on a recognition

that court orders cannot easily solve the problems of prisons, that

the executive, not judicial, branch of government is responsibie for

28

operating prisons, and, where state prisons are involved, that comity

counsels caution on the part of federal courts. Turner v. Safely,

482 U.S. 78, 85 (1987). Where judgment is entered by means of a

consent decree, however, prison officials have agreed that a decree

will resolve the problem, and those officials have voluntarily

relinquished some of their authority to the requirements of the

decree. As such, the deference due prison officials when liability

is determined, or when the court imposes a remedy, should not apply.

Cf. Local Number 93, 478 U.S. at 521-522 [limitations placed by

Congress on limits of Title VII remedies inapplicable where judgment

created by consent decree]. For this fundamental reason, the Ninth

Circuit's decision cannot conflict with this Court's decisions

requiring lowers courts to defer in some measure to the judgment of

prison officials before issuing an injunction.

Even assuming, however, that such deference must be given to

prison officials' views when modifications to a consent decree are

considered, the Ninth Circuit decision does not conflict with that

principle. The Court of Appeals held that a decree may be modified

whenever “experience with the administration of the decree shows the

need for modification in order to accomplish the primary goals of the

decree." Pet. App. at A-13. This standard, with its emphasis on the

practical day-to-day ramifications of decrees, itself requires courts

to focus on the opinions and experience of the parties.

The Ninth Circuit's focus on "experience with the administration

of the decree" also shows that the standard is a flexible one, and is

not dependent on any showing of unforseen circumstances or an

-injustice. Indeed, the standard applied in the present case is light

29

years from the “grievous wrong" standard set forth in United States

w. Swift & Co., 286 U.S. 106, 119 (1932).

The District Court and its Monitor properly identified the Ninth

Circuit's flexible standard in evaluating the requested

modifications. Although petitioners castigate the Monitor for

adopting a standard for modification that is “not susceptible of any

definition," they themselves then correctly state that the standard

applied was one which considered all the specific facts and

circumstances present. Pet. at 7-8 and fn. 4. One could hardly

imagine a more flexible standard. In fact, the standard for

modification of consent decrees urged by the jail officials in the

Suffolk County Jail cases presently pending before the Court (see

Pet. 1, fn. 1 and 59 U.S.L.W. 3546-3547) is precisely that which was

applied in the present case.

The record of the present case also makes clear that the Ninth

Circuit properly affirmed the order of the District Court and its

Monitor regarding application of the flexible standard to the

requested modifications. As the District Court stated, and as the

Court of Appeals agreed, the Monitor who initially considered the

requests “very thorough[ly] review[ed]) and consider[ed]...all the

evidence and relevant circumstances." Pet. App. at A-20.

Based on the Monitor's* report, the District Court ordered some

/

modifications as requested by prison officials.“ For example, based

13. Thus, no useful purpose would be served by holding this

case pending a decision in the Suffolk County Jail cases.

14. As discussed in the Statement of the Case, this was not

the first time the district court had modified the decree to

remedy concerns expressed by prison officials.

30

on prison officials’ security concerns, the court substantially

modified the Decree by eliminating the requirement that Grade B

prisoners be allowed to possess certain items and be allowed access

to a telephone. See Pet. App. at A-19 through A-20.

Similarly, in eliminating the Decree's requirement that condemned

prisoners in East Block be allowed tier time, the District Court's

Monitor found that enforcing that requirement would unnecessarily

entangle the District Court in prison operations and might jeopardize

security. See Pet. App. at A-63 through 66. Clearly, these very

major modifications which significantly reduce petitioners'

obligations are proof that their views were ‘eiven deference.

Petitioners, however, complain that their views were not given

deference because the Decree was modified to require that certain

recreational equipment be placed on the outdoor exercise yard. See

Pet. at 27. In complaining about this modification, petitioners fail

to mention that it was coupled with a modification which eliminated

the requirement that they provide such equipment indoors. See Pet.

App. at A-75 through A-78. In addition, the Monitor found that

petitioners presented "no evidence" that such equipment jeopardized

security. Id. at A-77.

Petitioners further complain that the Decree was not modified to

eliminate their obligations to provide a roof over part of the

outdoor exercise yard, to provide a shelf in particular cells, and to

allow certain prisoners the opportunity to purchase certain sundries.

Pet. at 27. Again, petitioners ignore the fact that they presented

31

absolutely no evidence to support their views. See Pet. App. at A-

68 through A-70, A-82 through A-83, and A-87 through A-88. With

respect to the yard roof, petitioners’ request to eliminate the

requirement was based solely on the asserted cost of compliance; the

District Court, however, found that any alternative method of

compliance would cost literally millions of dollars more than simply

installing a roof. Id. at A-69 through 70.

In sum, the record shows that the Ninth Circuit's affirmance of

the District Court's order regarding Decree modifications was

correct. The District Court applied a flexible standard that gave

deference to petitioners' views, and that deference in fact resulted

in substantial modifications to the benefit of petitioners. Where

petitioners' views did not prevail, the District Court's decision,

and the Ninth Circuit's affirmance, were based on findings that the

evidence presented did not support petitioners' assertions. The

Court of Appeals decision does not conflict in principle or otherwise

with this Court's decisions and, because a flexible standard was

applied by the courts below, granting certiorari in this case would

accomplish nothing but delay compliance with the modified Decree.

For these reasons, the petition should be denied.

15. Petitioners, in complaining that the courts rejected

certain of their modification requests even though no evidence

was adduced to support their assertions, forget that even the

deference given to prison officials when determining whethe

constitutional violations have occurred requires judicia

scrutiny, not sigply pure deference °¢ prisor fficials’ view

regarding such claims or to blind acceptance of Laima tha?

security would be jeopardized See. &.9 Turner » Safely, 4

U.Ss OS 37 invalidating regulation requiring approve . mare

because record shows rule not reas at ¥y related * » oxy it na?’

object ive

Iv.

THERE 18 BO CONFLICT AMONG THE CIRCUITS ON

THE APPEALABILITY OF POST-JUDGMENT ORDERS

AFFECTING AN EQUITABLE DECREE

Petitioners argued in the Ninth Circuit that the Consent Decree

should apply only to prisoners housed in North Seg. The Ninth

Circuit rejected the argument without reaching the merits because it

found that over the last eight years petitioners had numerous

opportunities to appeal the issue and had treated the Decree as if it

applied to prisoners in other units. The District Court held further

that petitioners were judicially and equitably estopped from

asserting a contrary position.

Petitioners now claim this Court should grant certiorari because

there is a conflict among the circuits about the appealability of

post-judgment orders affecting an equitable decree. The only

decision they cite to prove a conflict is a pre-judgment case that

uses the same reasoning as the Ninth Circuit in a previous ruling in

this case. Because there is no conflict and estoppel would prevent

petitioners from prevailing in any event, the Court should not grant

the writ.

A. The Ninth Circuit's Ruling Does Not Conflict

with the First Circuit

Petitioners assert that certiorari should be granted because the

Ninth Circuit's opinion conflicts with Rami v. Riv -Dueno, 861

F.2d 328 (lst Cir. 1988). Pet. at 29. Once again, there is no

nflict to be resolved by this Court. Ramirez was a pre-judgment

yue w! the district court denied aetendantes a trial and

ead appointed a special gmaster t meet and confer with the

parties.

The Court of Appeals correctly characterized the order as

one relating to the conduct and progress of the litigation. Id. at

p. 334. Unlike the present case, there was no injunction or consent

decree to be modified; it was merely a pre-trial order intended to

resolve the case short of trial. In Ramirez and the present case,

both circuits applied a consistent standard based on this Court's

decision in Carson v. American Brands, Inc., 450 U.S. 79 (1981).

An order that grants, continues, modifies, refuses or dissolves,

or refuses to dissolve or modify an injunction may be appealed under

28 U.S.C. §1292(a). In Carson, this Court set out the standard to

apply in determining whether an appeal falls under this statute.

First, the order should have the practical effect of granting or

denying an injunction. Second, it must have serious, perhaps

irreparable, consequences. Finally, the order needs to be one that

can be effectively challenged only by immediate appeal. Carson,

Supra, 450 U.S. 79, 84.

This standard has been consistently adopted by courts throughout

the circuits. See EEOC v. Pan American World Airways, Inc.

314, 316-317 (9th Cir. 1986); Roberts v. St. Regis Paper Co., 653

F.2d 166, 170 (5th Cir. 1981); Chronicle Pub. —

Co. Vv. Hantzis, 902

F.2d 1028-1031 (lst Cir. 1990).

In Ramirez, the First Circuit concluded that the appointment

a special master did not meet the first prong of this test. Because

the special master was only appointed ¢ Jetermine whether a

ir . 4 . 3 A °°“ ‘ c eo’ ee. . > e%

as & petit

to set a tri

settlement could be achieved, the order did not affect an injunction.

v. Riv = , 861 F.2d at 334. Ina similar fashion, the

Ninth Circuit in an earlier opinion in the present case dismissed

petitioners' appeal because the appointment of a special master did

not modify the Decree. Thompson v. Enomoto, 815 F.2d 1323, 1327 (9th

Cir. 1987).

Both circuits applied the same standard, used the same

reasoning, and reached the same result. Carson set forth the

applicable test. It is not something this Court need again decide.

B. ealabili istrict Court's Orders.

Petitioners' main argument is not that the order appointing a

special master was appealable, but that other orders applying the

Decree outside of North Seg were not. This assertion is wrong, both

for orders entered before and after the special master was appointed.

As early as January, 1982, the District Court rejected

petitioners' opposition to expand the scope of the Decree beyond

North Seg and retained its authority to ensure that petitioners

substantially complied with its terms. CR. 133. Except for limited

terms agreed upon by both parties, the court denied petitioners'

motion for modification. Jbid.

There is, in fact, little difference between the effect of this

order and the October 5, 1989, order now being contested. Both

orders rejected petitioners' attempts to dissolve the Decree, applied

the pecfee to condemned prisoners outside of North Seg, and

maintained jurisdiction to assure compliance. All parties agree that

the 198% rder is "final" under 28 U.S.C. 61291, subject to appeal.

ef fe ferula ss A; ye % fe ;< ° j Br ,ef ,UeCRE SON Vs Enomoto, No. 89-

16420, dated February 7, i990, p. 1. The same is true of the earlier

order.

The scope of the Decree also was at issue in June, 1982, when

the District Court ordered the parties to negotiate further

modifications outside of North Seg. Thompson v. Enomoto, 542 F.Supp.

758 (N.D. Cal. 1982). Petitioners could have appealed. Roberts v.

St. Regis Paper Co., 653 F.2d 166, 170 (5th Cir. 1981.) [extending

consent decree's scope is appealable under Carson standards].

In March, 1983, the court refused to dismiss the action simply

because the Decree was being complied with in respect to the named

plaintiffs housed in North Seg. CR 206; see also CR 185. Refusal to

dismiss an injunction is appealable. See Kerwit Medical Products

Inc. v. N. & H. Instruments, Inc., 616 F.2d 833 (5th Cir. 1980)

{order denying motion to vacate consent decree}.

At the same time, the District Court found petitioners in

contempt for failing to maximize visiting opportunities for prisoners

in the Adjustment Center, another unit outside North Seg. Reporters

Transcript, dated March 17, 1983, p. 20; CR 206; Pet.App. A-113.

Contempt is appealable where it appears the district court enlarged

upon the original judgment. See Szabo v. U.S. Marine Corp., 819 F.2d

714, 716-718 (7th Cir. 1987) [post-judgment contempt order

appealable].

Finally, in December, 1986, the court found that the Decree

applied to all condemned prisoners, wherever housed in San Quentin.

CR 327, 342. The practical effect of this was to enforce the Decree

outside of North Seg. Petitioners agree that this order was an

“interpretation" concerning the scope of the Decree. Pet. at 5. As

36

a Ean

such, it was an appealable modification. national Assn. of

Machinists;v. Eastern Airlines, 849 F.2d 1481, 1485-1486 (D.C. Cir.

1988).

Thus, the Court of Appeals simply applied the same standards

used by courts throughout the circuits. As such, it had ample

grounds for concluding:

It would be nonsensical to permit the prison officials to

appeal the issue of the applicability of the decree to the

Inmates outside of North Seg at this juncture of the case.

The prison officials had their opportunity to appeal the

modification of the decree... . Under the doctrine of

the law of the case, the court's interpretation of the

decree must stand.

Thompson v. Enomoto, 915 F.2d at 1390 (citation omitted).

C. Petitioners' Conduct Estops Them From Prevailing.

Even if petitioners could not have appealed the orders of the

District Court described above, their own conduct estops them from

successfully litigating the issue.”

The District Court's ruling applied two kinds of estoppel --

equitable and judicial -- to petitioners' conduct. Pet. App. A-116.

The court applied equitable estoppel because petitioners prejudiced

respondents by representing in other proceedings that the Decree

governs condemned prisoners outside of North Seg. Ibid; see Davis v.

Waklee, 156 U.S. 680, 689 (1985).

The District Court also applied the doctrine of judicial

estoppel, which prohibits a party from asserting a position in

litigation that is contrary to a previously asserted position.

17. Petitioners have not sought certiorari on this issue.

Therefore, this part of the lower court's ruling is final and

binding on al) parties.

37

Rockwell International v. Hanford Atomic Metal Trades Council, 851

F.2d 1208, 1210 (9th Cir. 1988). See also, Jett v. Zink, 474 F.2d

149, 155 (5th Cir.), cert. denied, 414 U.S. 854 (1973); Scarano v.

Central Ry. Co. of New Jersey, 203 §.2d 510, 513 (3rd Cir. 1953).

The court found that petitioners' position is inconsistent with that

taken earlier in successfully moving the court to modify the Decree

in units other than North Seg. Pet. App. A-116.

The Court of Appeals made the same basic point:

If the decree had ceased to exist in 1982, or if the decree

had been confined to North Seg Inmates, it would be

nonsensical for the prison officials to have attempted to

negotiate modifications to the decree for eight years for

the inmates housed outside of North Seg.

Thompson v_ Enomoto, 915 F.2d at 1389-1390.

CONCLUSION

For the reasons stated above, the petition for writ of

certiorari should be denied.

Respectfully submitted,

/ ff . rs VA

/ ‘ fs

DONALD SPECTER

[Counsel of Record]

STEVEN FAMA

ARNOLD ERICKSON

Prison Law Office

General Delivery

San Quentin, CA 94964

(415) 457-9144

Attorneys for Respondents

April 1991

CERTIFICATE OF SERVICE BY MAIL

JAMES ROWLAND), e1 ai.

No. 90-1499

Petitioners,

V. ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE NINTH

CIRCUIT

MAURICE S. THOMPSON, et al.,

Respondents.

ee ee

JOHN G. DONHOFF, JR., a member of the Bar of the Supreme Court

of the United States, states:

That his business address is 455 Golden Gate Avenue, Room 6200, in the

City and County of San Francisco, State of California; that on May 6, 1991, he served

a true copy of the attached Reply Brief of Petitioners on Writ of Certiorari in the

above-entitled matter on counsel for petitioner by- placing same in envelope addressed

as follows:

DON SPECTER ROBERT R. RIGGS

PRISON LAW OFFICE 15S SHATTUCK SQUARE, SUITE 205

GENERAL DELIVERY BERKELEY, CA 94704

SAN QUENTIN, CA 94964

Said envelope was then sealed and deposited in the United States Mail at

San Francisco, California, with the postage thereon fully prepaid.

RECEIVED

MAY 8 1991

-- THE CLERK

office ~ TH

SUPREME COURT, U.S.

as,

IN THE SUPREME COURT OF THE UNITED STATES

JAMES ROWLAND, Director of

California Department of

Corrections, et al., No. 90-1499

Petitioners,

PROOF OF SERVICE

MAURICE S. THOMPSON, et al.,

Respondents.

ee eae ee ee ae ee ee

I, Donald Specter, a member of the Bar of this Court, hereby

certify that on the 25th day of April 1991 one copy of the

Opposition to Petition for Writ of Certiorari, Motion to Proceed

in Forma Pauperis and Declaration of Andrew Robertson in the

above-entitled case was mailed first class postage prepaid to

, rn » -

hn Donhoff

, Deputy Attorney General, 455 Golden Gate Avenue,

Suite 6200, San Francisco, California 94102, counsel for all

petitioners herein. I further certify that all parties required

to be served have been served.

Respectfully submitted,

—-

A“ tr wh f 3st c..,

Donald Specter

Prison Law Office

General Delivery

San Quentin, California 94964

(415) 457-9144

Attorney for Respondents

CERTIFICATE OF SERVICE BY MAIL

os

Sd — [Y G6

JIRO J. ENOMOTO, et al, )

)

Petitioners, )

RECEIVED

: ‘ MAR 14 1991

MAURICE S. THOMPSON, et al., ) OFFICE ~~ THE CLERK

) SUPREME COURT, U.S.

Respondents. )

)

JOHN G. DONHOFF, JR., a member of the Bar of the Supreme Court

of the United States, states:

That his business address is 455 Golden Gate Avenue, Room 6200, in the

City and County of San Francisco, State of California; that on March 13, 1991, he

served the required number of true copies of the Petition for Writ of Certiorari and

Separate Appendix Petition for Writ of Certiorari in the above-entitled matter on

counsel for respondents and the Clerk of the Court of Appeals of the Ninth Circuit, by

placing same in envelope(s) addressed as follows:

CLERK OF COURT JEFFREY D. WOHL

U. S. COURT OF APPEALS ORRICK, HERRINGTON &

NINTH CIRCUIT SUTCLIFFE

P. O. BOX 547 400 SANSOME STREET

SAN FRANCISCO, CA 94101 SAN FRANCISCO, CA 94111

DON SPECTER

PRISON LAW OFFICE

GENERAL DELIVERY

SAN QUENTIN, CA 94964

Said envelope(s) were thep sealed and deposited in the United States

Mail at San Francisco, California, wit 6 gies thereon fully prepaid. ;

j

j

/

/

JOHN G. :

Deputy Attorney (